Appellant was convicted of capital murder. V.T.C.A. Penal Code, § 19.03(a)(2). Following the jury's return of affirmative answers to the submitted special issues
Appellant does not challenge the sufficiency of the evidence either to support his conviction or to support the jury's affirmative answers to the special issues. Rather, appellant asserts various challenges to the trial court's rulings during voir dire and both phases of his trial. As a result, we will initially dispense with a recitation of the facts in this case.
In his first point of error, appellant claims that the trial court erred in declining to allow him to submit jury charges on the mitigating quality of evidence he had proffered on his abused childhood and drug use. Appellant contends that the special issues then in effect
At the punishment phase of the trial, appellant called three witnesses familiar with his childhood. First, appellant's foster sister (who had lived in his natural mother's household) testified that appellant "was beaten" with a "big, thick belt", that he was "mistreated, neglected, [and] ignored" by his stepfather, and that he
On several prior occasions, this Court has considered whether the special issues allow a jury to give mitigating effect to evidence of an abused background.
Applying the principle espoused in Goss, the evidence presented in the cause sub judice is likewise not relevant beyond the scope of the special issues. Evidence of the appellant's unfortunate childhood was not, without some testimony indicating a nexus between his childhood circumstances and the commission of the crime, helpful to the jury's consideration of the special issues or indicative of a lessened moral blameworthiness. In fact, the evidence appellant chose to present tends to show that the abuse appellant received was sporadic and isolated, not of a continuing nature. Indeed, testimony revealed that attempts were made to place appellant in a safe and nurturing environment once evidence of his less than model home-life became apparent. As such, the evidence he offered was sufficiently encompassed within the scope of the special issues and no special jury charge was required.
Additionally in point of error one, appellant claims that he was entitled to a special jury instruction regarding the potential mitigating quality of being intoxicated at the time of the offense. During questioning at the guilt phase of the trial, appellant's girlfriend told of his use of drugs both prior to and on the night of the crime. That testimony revealed that the appellant had used drugs in her presence on many occasions, including the night of the murders. Although she stated that "[h]e didn't tell [her] when he would use them[,]" she did testify that she "occasionally" saw methamphetamine in his attache case, and that it appeared that he was "shooting" these drugs because she saw needles in his case and "track marks on his arm."
The jury, at the punishment phase of appellant's trial, again heard testimony of his alleged drug use. At that proceeding, the defense offered the testimony of three witnesses who claimed to know of his drug abuse, viz: two ministers, and a police officer. Appellant's minister related that he first came to know the appellant during a telephone conversation regarding his recent release from prison and his desire "to reorient into society."
Although enlightening as to the appellant's propensity to use drugs, the foregoing testimony was not useful to the jury's consideration of appellant's deathworthiness. This Court has considered the impact of drugs as they relate to the special issues, and, unless a direct correlation can be drawn between the use of the drugs and a defendant's aberrational behavior, we have determined that such usage is fully encompassed within the scope of Article 37.071.
In point of error number two, appellant submits that the interaction of subsections d, e, and g of Article 37.071 is unconstitutional in that they force the trial court "to impart inaccurate and misleading information that minimizes the importance of the jurors' deliberation and undermines the reliability of the death penalty." Appellant's Br. at 36. As we understand appellant's argument, this interaction could possibly induce a juror, who is wavering between a "yes" and "no" vote, to vote "yes" in order that a jury deadlock is avoided. Such a vote, appellant argues, indicates an impermissible lessening of the individual juror's deliberative function, and is thus violative of appellant's rights under the Eighth and Fourteenth Amendments to the United States Constitution, and Article I, §§ 13 & 19 of the Texas Constitution.
This Court, in Davis v. State, 782 S.W.2d 211 (Tex.Crim.App.1989), cert. denied, 495 U.S. 940, 110 S.Ct. 2193, 109 L.Ed.2d. 520 (1990), has reviewed a virtually identical claim. We quote liberally from Presiding Judge McCormick's dispensation of the issue in that case:
The jury in a capital murder case is responsible for answering questions the result of which will determine the life or death of an individual. Any information that is given the jury which may be interpreted by it as relieving that responsibility is considered an infraction upon the jury's fact finding function. See, e.g., Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (jurors improperly told that their decision was "reviewable"). In rejecting the same challenge made by appellant in this case, the United States District Court for the Eastern District of North Carolina observed:
"Petitioner contends that a juror who conscientiously believes that the evidence called for a life sentence might nevertheless vote for the death penalty in order to avoid mistakenly assumed consequences of jury deadlock. Although this scenario is plausible, so is the converse possibility that a juror convinced of the appropriateness of a life sentence would refuse to consider the evidence and the views of other jurors in support of the death penalty, knowing that his blind obstinance would perforce result in a life sentence. Neither scenario results in a `reliable' or desirable process of deliberation, but the court cannot say that the first scenario is significantly likely to occur as a result of not giving the instruction than is the second as a result of giving it." Barfield v. Harris, 540 F.Supp. 451, 472 n. 17 (E.D.N.C. 1982) affirmed, 719 F.2d 58 (4th Cir. 1983) cert. denied, 467 U.S. 1210, 104 S.Ct. 2401, 81 L.Ed.2d 357 (1984).
Davis at 221-222; See also Sterling v. State, 830 S.W.2d 114, 122 (Tex.Crim.App. 1992) (citing Davis ).
After extensive review of the record, we were unable to find any misleading deviations, by counsel or the trial court, from the language of Article 37.071; in fact, the record is replete with instances in which counsel for both the State and the defense correctly informed the jurors, individually and collectively, of the application of the statute. The Texas death penalty statute has previously been held to be valid. Jurek v. State, 522 S.W.2d 934 (Tex.Crim. App.1975), affd sub nom. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). "If discretion in the assessment of punishment under a statute can be shown to be reasonable and controlled, rather than capricious and discriminatory, the test of Furman[
Appellant's third point of error in many respects mirrors his second. Once again he claims that the interaction of subsections d, e, and g of Article 37.071 work a violation of his constitutional rights, however he formulates this claim with the additional assertion that the article
Our statute allows a jury to be informed that twelve jurors must vote "yes" on each special issue in order for the trial judge to impose the death penalty, but that ten jurors are required to answer "no" to any given special issue; a jury is not told of the effect of their potential inability to agree on a submitted issue. See TexCode Crim. ProcAnn. art. 37.071 (Vernon supp.1986). It is the role of a juror to simply answer the special issues either "yes" or "no," and nothing else. Conversely, it is not the role of the individual juror to skirt this responsibility by failing to return a vote. The issues are framed in a manner which permits them to be answered either affirmatively or negatively, and it is the purpose of the deliberative process to resolve juror vacillation. Upon individual questioning during voir dire, each juror indicated an ability to follow the law and to act as a fact finder. This included the responsibility to vote "no" to a special issue if the evidence so required, even if this meant that their's was the "lone vote." A juror who is unsatisfied that the answer to a special issue is "yes" is duty bound to vote "no," and it is therefore not necessary, nor indeed helpful, to inform the jury of the result of a failure to reach a statutorily permitted juror combination.
Furthermore, Article 37.071 cannot take away that which has not been given. Appellant is not entitled to a sentence of less than death: the statute merely operates in such a fashion that, having returned a verdict of guilty in the guilt/innocence phase of the trial, a punishment of at least life imprisonment will then be required. The "ultimate penalty" is reserved for those few incorrigibles that pose such a great threat to society that they cannot be incarcerated without fear of further violent outbursts toward others, and it is that future probability that a jury is called on to decide. A defendant whom a jury has unanimously found to present a great danger to society is not entitled to life imprisonment, even though that sentence may have been imposed. We thus hold that appellant was not statutorily entitled to a sentence less than death, and appellant's third point of error is overruled.
Appellant's fourth point of error challenges the trial court's refusal to submit his requested jury charge on the lesser included offense of voluntary manslaughter. Our Penal Code describes voluntary manslaughter in the following manner:
(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code,[
(b) "Sudden passion" means passion directly caused by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
(c) "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.
Tex. Penal Code Ann. § 19.04 (Vernon 1974) (emphasis added). Voluntary manslaughter is a lesser included offense of murder and, therefore, capital murder. See generally Brooks v. State, 548 S.W.2d 680, 683 (Tex.Crim.App.1977); Sattiewhite v. State, 786 S.W.2d 271, 278 (Tex.Crim. App.1989), cert. denied, 498 U.S. 881, 111 S.Ct. 226, 112 L.Ed.2d 181 (1990) (citing Brooks).
In Royster v. State, we proposed a twostep analysis for determining whether a trial court has erred in not submitting a charge on a lesser included offense. 622 S.W.2d 442, 446 (Tex.Crim.App.1981) (on Court's Motion for Rehearing) (plurality). We adopted the Royster test in Aguilar v. State, 682 S.W.2d 556 (Tex.Crim.App.1985). The first prong of that test requires "the lesser included offense [to] be included within the proof necessary to establish the offense charged." Royster, at 446. The second prong requires that "there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense." Id. Appellant has satisfied the first prong of the Royster test.
Nevertheless, the simple fact that voluntary manslaughter is a lesser included offense of murder (and therefore capital murder
In the determination whether the evidence was sufficient to warrant a jury charge on voluntary manslaughter, this Court must consider all relevant facts and circumstances. It is not enough that appellant acted mad or upset, the evidence must also show that the anger was the result of an act of provocation on the part of the deceased or a third party acting in concert with the deceased. Marquez [v. State, 725 S.W.2d 217, 224 (Tex.Crim.App.1987), cert. denied, 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987)]; See Lincecum v. State, 736 S.W.2d 673 (Tex.Cr.App.1987) cert. denied 486 U.S. 1061, 108 S.Ct. 2835, 100 L.Ed.2d 936 (1988). In cases where this Court has held the evidence was sufficient to warrant such a charge, a distinguishing factor tends to be that the deceased and the appellant had engaged in some sort of altercation or argument which immediately escalated into a killing. See Humphries v. State, 615 S.W.2d 737 (Tex.Cr.App.1981) (stabbing in the course of a heated argument); Schoelman v. State, 644 S.W.2d 727 (Tex.Cr.App.1983) (shooting after an argument over a ring). However, this Court has distinguished cases where the passion was not sudden. Hobson [v. State, 644 S.W.2d 473 (Tex.Crim.App. 1983)], supra. (Charge on voluntary manslaughter not warranted where altercation took place in the morning and the stabbing took place in the evening.) Jenkins v. State, 740 S.W.2d 435 (Tex.Cr. App. 1983). (Killing resulted after highway chase and altercation; defendant not entitled to a charge on voluntary manslaughter because fear alone is not enough to raise sudden passion.)
786 S.W.2d at 289.
In the cause sub judice, Ron Ross, the boyfriend of one of the victims, testified that he had taken Mitzi Johnson Nalley out
Germane to this point of error, appellant points us to several parts of the record which he alleges provide some evidence that he is guilty of only the lesser offense of voluntary manslaughter. Testimony from two witnesses shows, appellant contends, that he was "acting in response to sudden passion from an adequate cause exacerbated by his mental state and drug abuse...." Appellant's Br. at 45. However, nothing in the record supports appellant's contention because the evidence proffered is wholly unrelated to the crime committed. Evidence provided by the two witnesses suggests that appellant may have been in a general state of anger or frustration. Nonetheless, there is no evidence showing that his victims created this state. Additionally, appellant's anxiety level, according to one of the witnesses, had been high for at least several months. As there is no evidence indicating that the victims produced in appellant the requisite sudden passion (nor even that the passion, if any, arose during the commission of the crime), the trial court did not err in denying the requested charge. Appellant's fourth point of error is overruled.
In point of error five, appellant maintains that the trial court committed error when he allowed the prosecution to present certain portions of the testimony of Dr. Harvey Renger. As previously mentioned, on the morning of the murders Ron Ross was also attacked by appellant. Renger, on emergency room duty, treated the severe wounds Ross suffered at the hands of appellant, and he later testified at trial as to the efforts he undertook in saving Ross's life. Appellant made no objection to the Doctor's testimony regarding the nature and extent of the injuries inflicted, but he did object to any mention of "the medical and surgical procedures that were necessary in treating Ross[ ]", specifically, the admission of testimony regarding the surgical procedures used to repair stab wounds and to later remove Ross's right eye. Appellant's Br. at 46. His objection was overruled, and he claims that the testimony was irrelevant and prejudicial.
While evidence of the nature complained of could, under some circumstances, be considered extraneous and improper, that is not true in the present situation. The Grand Jury of Travis County returned an indictment which alleged, in pertinent part, that
Tr. at 3 (emphasis added). The jury returned a verdict of guilty based on this theory, therefore burglary was the felonious conduct undergirding the capital murder conviction. See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon supp.1985).
Burglary occurs when a person "enters a building or habitation and commits or attempts to commit a felony or theft." Id. § 30.02(a)(3). In this case, the proved underlying felony was the aggravated assault committed upon Ross. Appellant's assault on Ross, in order to be considered aggravated and, therefore, felonious, required proof of an aggravating element, e.g.: the infliction of serious bodily injury. Id. § 22.02. "`Serious bodily injury' means
In the instant case, the testimony provided by Dr. Renger largely amounted to descriptions of the wounds inflicted on Ron Ross. At one point, Renger testified that in conducting a laparotomy
Point of error six challenges the failure of the trial judge to grant a mistrial following a witness's reference to an extraneous offense. The statement complained of came during direct questioning of John Bruce Smith (during the trial on the merits), a witness for the State who had seen appellant soon after the commission of the murders. Having testified that the witness's roommate and appellant had shown him a four-inch gash on appellant's forearm, Smith was asked: "What happened after you looked at the wound?" The following exchange then took place:
MR. BRITTAIN [Defense Counsel]: Your Honor, I'm going to object to the hearsay nature of this and take up a matter of law.
THE COURT: That will be overruled.
MR. BRITTAIN: We need to take up a matter of law, Your Honor.
THE COURT: Ladies and gentlemen of the jury, you'll recess to the jury room. Keep in mind the instructions I've given you.
MR. BRITTAIN: The reason we make a Motion in Limine, Your Honor, is not only—we assume that the State's attorneys will be professional in their conduct and not elicit information concerning prior criminal record of the defendant during the guilt-innocence stage of the trial, which is clearly not admissible, highly prejudicial, but they will also, as the Motion in Limine refers to, prevent witnesses from doing the same. And these witnesses are to be instructed—and the Court has granted this motion with respect to number two—that they are not to in any way elicit information concerning the prior criminal record.
THE COURT: Mr. McCleery?
MR. McCLEERY [Prosecutor]: Judge, this is the first time that I've heard this particular statement regarding going back to prison as has been said at this time. I would have, of course, instructed the witness not to—perhaps I would have—without taking it outside—taking it up outside the presence of the jury.
THE COURT: The objection is overruled. I'll instruct you, Mr. Smith, not to make any reference whatsoever to any statements concerning a criminal history or any incarceration or any other crimes. Do you understand that?
THE WITNESS: Yes, sir.
THE COURT: Ladies and gentlemen of the jury, in connection with the testimony of the witness concerning going back to prison, you are to put that out of your mind totally and absolutely. You're not to discuss it in your deliberations or consider it for any purpose. You are not to go into that for any reason or consider it for any reason. Do each of you understand that?
You may proceed.
It is an established principle that a defendant is not to be tried for collateral crimes or for generally being a criminal. See Bordelon v. State, 683 S.W.2d 9 (Tex.Crim.App.1985); Williams v. State, 662 S.W.2d 344 (Tex.Crim.App. 1983). However, inadvertent references to prior incarceration can be cured of prejudicial effect. See Gardner v. State, 730 S.W.2d 675, 697 (Tex.Crim.App. 1987), cert. denied, 484 U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987); Barney v. State, 698 S.W.2d 114, 124-125 (Tex.Crim.App.1985); Coe v. State, 683 S.W.2d 431 (Tex.Crim.App.1984). In Tennard v. State, 802 S.W.2d 678, 685 (Tex.Crim.App.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991), a witness inadvertently responded with an answer implying that the defendant had previously been incarcerated. Quoting from Williams v. State, 643 S.W.2d 136 (Tex.Crim.App.1982), the per curiam Court repeated that "[e]ven where such prejudicial information is inadvertently placed before a jury, the general rule is still that an instruction by the trial judge to the jury to disregard such answer will be sufficient to cure any unresponsive answer." Id. (citing Williams, supra, at 138). Therefore, the statement, virtually identical to the one made in the case-at-bar, was held cured when "the trial judge promptly instructed the jury to disregard the witnesses] answer." Id. at 685.
Likewise, the trial judge's prompt and thorough instruction cured any error presented in this case, and appellant's sixth point of error is overruled.
In his seventh point of error, appellant maintains that it was error for the trial judge to allow State's witness Pat Hewlin, a chemist for the Texas Department of Public Safety, to testify in her expert capacity regarding the results of laboratory analyses performed on evidence which had been removed from the crime scene. In particular, appellant contends that the State failed to timely provide Hewlin's name on a witness list (as required by his granted pre-trial motion).
When reviewing a claim such as this, a number of factors surrounding the trial court's decision (and, hence, whether it was an abuse of discretion) must be considered. "Among the factors which will be considered by this Court in determining ... abuse of discretion is a showing of bad faith on the part of the prosecutor in failing to disclose ahead of time the name of the witness." Hightower v. State, 629 S.W.2d 920, 925 (Tex.Crim.App. [Panel Op.] 1981). "Another such factor is whether the defendant can reasonably anticipate
In Richardson, fn. 20 supra, a clinical psychologist, unfamiliar with the defendant, was called by the State for the purpose of testifying on propounded hypotheticals. 744 S.W.2d at 77. This Court applied the above discussed standard and found that the State had not acted in bad faith because it notified the defendant's counsel as soon as it contacted the witness. Id. Moreover, the witness's testimony was not shown to be biased for one side or the other, and "the trial court did all it could to insure appellant was not unfairly harmed by [the witness's] testimony...." Id. This included "offering to consider a postponement so that appellant could prepare for the testimony, an offer upon which the appellant failed to act." Id. Thus, the trial court was not found to have abused its discretion. Id. at 78.
In the record of the proceedings below, it is apparent that the State filed several witness lists and that Hewlin's name did not appear on them; thus, appellant's contention merits review. However, the record further shows that notice of Hewlin's name was file marked five days prior to the start of the State's direct evidence, a date eight days before the witness was actually called.
Given the above, we find that allowing the witness, Hewlin, to testify was not an abuse of the trial court's discretion. Appellant's seventh point of error is overruled.
Appellant's eighth and final point of error challenges, as an improper sua sponte action, the trial court's excusal of Venireperson Buentello. The record shows that, upon questioning by the State, it became apparent that the potential juror had a hearing defect. Voir dire examination produced the following exchange:
MS. GARCIA: Well, Your Honor, we're going to ask—or we're going to challenge or ask that he been [sic] excused due to the hearing difficulty he's expressed that he's had—been a juror before, and it's [sic] presented a problem.
The defense was then allowed to question Buentello, and the venireperson did state that he would immediately inform the court if he ever had difficulty hearing a question. The trial court stated that he was "really concerned because [they had] a man's life in jeopardy ..." and he would "sure hate for him to miss something and not ... let the Court know...." Ultimately, the judge granted the challenge for cause; to this the defense counsel objected claiming that Buentello seemed, to them, acceptable.
In a challenge of this nature, the relevant portion of the Code of Criminal Procedure is Article 35.16. As Section (a) of that article provides, a challenge may be made by the State or defense when a juror:
5.... has such defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render him unfit for jury service,....
Tex. Code Crim.Proc.Ann art. 35.16(a)(5) (Vernon supp.1986) (emphasis added). The trial court is charged with determining the qualifications of a prospective juror, and we are understandably hesitant, viewing only the record from below, to interpose our judgment on appeal. See generally, Marras v. State, 741 S.W.2d 395 (Tex.Crim. App. 1987); Woolls v. State, 665 S.W.2d 455 (Tex.Crim.App.1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 889 (1984).
On the basis of the testimony adduced during voir dire, it is evident that the trial judge excused Venireperson Buentello pursuant to the State's challenge for cause. As such, his excusal was neither sua sponte, nor erroneous. Appellant's eighth point of error is overruled. Having found appellant's points of error to be meritless, we affirm the trial court's judgment.
CLINTON, J., dissents.
BAIRD, J., concurs in the result only as to point of error number I and joins the remainder of the opinion.
OVERSTREET, J., concurs in the result.
MALONEY, J., dissents to the disposition of point of error number I.
(b) On conclusion of the presentation of the evidence, the court shall submit the following three issues to the jury:
(1) whether the conduct of the defendant was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.
TexCode Crim.Proc.Ann art. 37.071 (Vernon supp. 1986). Trial counsel, in seeking to present evidence showing that a defendant's moral blameworthiness was low, simultaneously presented evidence indicating that the defendant would continue to be a threat to society. This was the "two edged sword" Justice O'Connor referred to while invalidating Penry's conviction. Penry, 492 u.S. at 324, 109 S.Ct. at 2949.
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or in the immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
Tex.Penal Code Ann. § 19.02 (Vernon 1974).
THE COURT: Mr. Buentello, let me ask you this: Did I understand you correctly to inform the Court that you had previously sat in a civil jury and you could not hear and you had to ask other jurors what was being said?
THE VENIREPERSON: Once we were in the room afterwards, yes, sir.
THE COURT: That was even in the room afterwards.
THE VENIREPERSON: Yes, sir. I didn't hear the Judge ask them whether anybody was having trouble with their hearing, but I was then because, like I said, they open [sic] my skull and—The bullet went right through here, and they open the skull to get the bullet. And they told me my hearing would be affected, and I guess it did. I know, because I couldn't hear nothing. And I guess as I get older, well, it's getting worse.
It seems apparent that, in light of such testimony, Buentello suffered from acute hearing loss. Thus, contrary to appellant's assertion, Buentello was not an acceptable juror.